Stevens, J.,
delivered the opinion of the court.
The issue presented by the plea of recoupment should have been submitted to the jury. There was evidence tending to prove that appellee warranted the Wurlitzer piano, purchased by appellant from the appellee, to be a first-class musical instrument; that it could be regulated to play either loud or soft music; that it would make music suitable for a theatorium or picture sliow; and *38that it would be satisfactory to Mr. Bowers as the proprietor and operator of such show. The testimony tended further to prove that the instrument was not a first-class piano; that it could not be regulated to play soft music; but, on the contrary, that'appellee’s agent had attempted to regulate it and had failed in the attempt; that, in the language of Mr. Bowers, it was a “groan box;” that it was not satisfactory to him as the operator of the moving picture show; and that the instrument did not come up to representations. The testimony was indefinite as to the difference in value of the instrument as it proved to be, and the piano that Mr. Bowers thought he was buying, or the one as represented ; and the, evidence was not altogether definite as to the exact amount of damage sustained by Mr. Bowers. There was, however, an affirmative plea interposed by the defendant, claiming damages for the breach of the warranty of the kind or quality of the article sold, and the proof justified a submission to the jury of the inquiry as to the exact amount of damages. The sufficiency of the plea of recoupment was not challenged. The acceptance of the new piano by Mr. Bowers, under all the circumstances, was not a waiver of his claim for damages for the breach of warranty. Stillwell Co. v. Biloxi Co., 78 Miss. 779" court="Miss." date_filed="1901-03-15" href="https://app.midpage.ai/document/stillwell-bierce--smith-vaile-co-v-biloxi-canning-co-7988547?utm_source=webapp" opinion_id="7988547">78 Miss. 779, 29 So. 513; Commission Co. v. Crook, 87 Miss. 445" court="Miss." date_filed="1905-11-15" href="https://app.midpage.ai/document/hall-commission-co-v-crook-7989485?utm_source=webapp" opinion_id="7989485">87 Miss. 445, 40 So. 20, 1006; Mobile Auto Co. v. Sturges, 107 Miss. 848, 66 So. 205. In the instant case there was an express warranty about the quality of music the instrument would make, and about its adaptability to the use and purpose for which it was purchased. Appellee was fully advised of Mr. Bowers’ needs, the exact place the instrument was to be installed, and the purpose for which it was bought.
In our judgment, the effort to compromise proved abortive, and the proposition of settlement is no longer binding upon either party. The testimony ■ shows that if appellee returned the old piano to Mr. Bowers, at his place of business, in as good condition as it was, the *39latter would accept it hack and pay one hundred dollars and the cost of court. There was no agreement that appellee was to repair the old instrument, and the question as to whether, it was, or was not, in as good condition, was a fact to he decided by Mr. Freeland, and by him alone. The party selected to pass judgment upon the condition of the old piano unhesitatingly certified that it was not in good condition, and his statement was accepted by 'Mr. Bowers without protest. The proposition of settlement seems not to have been entertained further. The agreement was tentative and never executed. The undertaking of appellee was not to return the old piano absolutely in as good condition as it was when Bowers parted with the possession, but to return it, provided only in the judgment of Mr. Freeland it was in as good condition as before.
The judgment of the learned circuit court will be reversed, and the cause remanded.
Reversed and remanded.